Citation Nr: 0321281
Decision Date: 08/26/03 Archive Date: 09/02/03
DOCKET NO. 99-16 550 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas
THE ISSUES
1. Entitlement to service connection for a left ankle
disability.
2. Entitlement to service connection for right carpal tunnel
syndrome.
REPRESENTATION
Veteran represented by: Military Order of the Purple
Heart of the U.S.A.
ATTORNEY FOR THE BOARD
C. Kedem, Associate Counsel
INTRODUCTION
The veteran had active duty service from December 1959 to
October 1981.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from an April 1998 rating decision by a
Regional Office (RO) of the Department of Veterans Affairs
(VA). A notice of disagreement was received in July 1998, a
statement of the case was issued in June 1999, and a
substantive appeal was received in June 1999.
A hearing was scheduled for September 1999, but a review of
the file indicates that the veteran cancelled the hearing.
Nonetheless, to clarify the veteran's wishes regarding a
hearing, the Board sent the veteran a letter in January 2003.
As of this date, no response has been received. Accordingly,
the Board will proceed with consideration of the veteran's
claim based on the evidence of record, as he has essentially
requested. See 38 C.F.R. § 20.704(e) (2002).
In April 2003, the Board undertook additional development
with regard to the issues of entitlement to service
connection for a left ankle disorder and right carpal tunnel
syndrome, pursuant to authority granted by 38 C.F.R. §
19.9(a)(2) (2002). The foregoing provision was recently
invalidated. See Disabled American Veterans v. Secretary of
Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003). The
implications of this recent change will be detailed fully
below.
FINDING OF FACT
The veteran's left ankle disability is shown to be related to
his active duty service.
CONCLUSION OF LAW
The veteran's left ankle disability was incurred in active
duty service. 38 U.S.C.A. §§ 1131, 5107 (2002); 38 C.F.R.
§§ 3.102, 3.303 (2002).
REASONS AND BASES FOR FINDING AND CONCLUSION
Veterans Claims Assistance Act
The Veterans Claims Assistance Act of 2000 (VCAA) provides
that the Secretary shall make reasonable efforts to assist a
claimant in obtaining evidence necessary to substantiate a
claim for benefits unless no reasonable possibility exists
that such assistance would aid in substantiating the claim.
The Secretary may defer providing assistance pending the
submission by the claimant of essential information missing
from the application. 38 U.S.C.A. § 5103A (West 2002).
Having reviewed the complete record, the Board believes that
there is ample medical and other evidence of record upon
which to decide the veteran's claim of service connection for
a left ankle disability. The veteran and his representative,
moreover, have been accorded ample opportunity to present
evidence and argument on his behalf. Further, he and his
representative have been notified of the evidence needed to
establish the benefit sought, and he has been advised
regarding his and VA's respective responsibilities as to
obtaining that evidence. See Quartuccio v. Principi, 16 Vet.
App. 183 (2002). Consequently, the Board concludes that VA's
statutory duty to assist the veteran has been satisfied.
The Board notes that seeking further development regarding
the issue of service connection for a left ankle disability
would serve no useful purpose. Soyini v. Derwinski, 1 Vet.
App. 540 (1991) (strict adherence to requirements in the law
does not dictate an unquestioning, blind adherence in the
face of overwhelming evidence in support of the result in a
particular case; such adherence would result in unnecessarily
imposing additional burdens on VA with no benefit flowing to
the veteran); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994)
(remands which would only result in unnecessarily imposing
additional burdens on VA with no benefit flowing to the
veteran should be avoided). VA has satisfied, as far as
practicably possible, the notice, assistance, and other
requirements of VCAA, and any further action would only serve
to burden VA with no foreseeable benefits flowing to the
veteran. Id.; Soyini, supra.
Factual Background
On June 1967 report of medical history, the veteran indicated
no adverse left ankle symptoms. The April 1969 medical
examination report reflects no orthopedic abnormalities. The
veteran's "PULHES" physical profile amounted to a "picket
fence" (i.e., all 1's), indicating a high level of medical
fitness. (See generally Hanson v. Derwinski, 1 Vet. App.
512, 514 (1991) for an explanation of the military medical
profile system). September 1969 service medical records
indicate that the veteran injured his left ankle. A five-day
"profile" was recommended.
The September 1981 retirement medical examination report
reflects no orthopedic abnormalities.
On January 1998 VA orthopedic examination, the examiner noted
a normal gait pattern. The veteran's ankles were
symmetrical, and there was no left ankle crepitus, atrophy,
or signs of disuse.
By April 1998 and June 1999 rating decisions, the RO denied
service connection for the veteran's left ankle disability.
On July 2003 VA orthopedic examination, the veteran described
a left ankle injury that occurred while he was running into a
bunker. At that time, he stated that his ankle was placed in
a gel cast for approximately one month. He indicated that he
had experienced intermittent adverse left ankle
symptomatology since that time. On objective examination,
the veteran's ankle appeared normal; there was a normal gait
pattern and no abnormal left foot calluses. The examiner
diagnosed a sprain of the left ankle during early service and
opined that there was sufficient continuity of left ankle
symptomatology since service to warrant a conclusion that the
veteran's present left ankle disability is related to
service.
Law and Regulations
The issue before the Board involves a claim of entitlement to
service connection. Applicable law provides that service
connection will be granted if it is shown that the veteran
suffers from disability resulting from an injury suffered or
disease contracted in line of duty, or for aggravation of a
preexisting injury suffered or disease contracted in line of
duty, in the active military, naval, or air service.
38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303.
That an injury occurred in service alone is not enough; there
must be chronic disability resulting from that injury. If
there is no showing of a resulting chronic condition during
service, then a showing of continuity of symptomatology after
service is required to support a finding of chronicity.
38 C.F.R. § 3.303(b).
Service connection may also be granted for any disease
diagnosed after discharge, when all the evidence, including
that pertinent to service, establishes that the disease was
incurred in service. 38 C.F.R. § 3.303(d).
A claim of service connection for a disability must be
accompanied by medical evidence establishing that the
claimant currently has a claimed disability. Absent proof of
a present disability, there can be no valid claim. See,
e.g., Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998) (38
U.S.C. § 1110 requires current symptomatology at the time the
claim is filed in order for a veteran to be entitled to
compensation); Degmetich v. Brown, 104 F.3d 1328 (Fed. Cir.
1997) (38 U.S.C. § 1131 requires the existence of a present
disability for VA compensation purposes).
When there is an approximate balance of positive and negative
evidence regarding the merits of an issue material to the
determination of the matter, the benefit of the doubt in
resolving each such issue shall be given the claimant. 38
U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49
(1990); 38 C.F.R. § 4.3. When the positive and negative
evidence as to a veteran's claim are in approximate balance,
thereby creating a reasonable doubt as to the merits of a
claim, the veteran prevails. Ortiz v. Principi, 274 F.3d
1361 (Fed. Cir. 2001). If the Board determines that the
preponderance of the evidence is against the claim, it has
necessarily found that the evidence is not in approximate
balance, and the benefit of the doubt rule is inapplicable.
Id. at 1365.
Analysis
The veteran suffers from a current left ankle disability as
confirmed on July 2003 VA medical examination. As such, the
first condition for the granting of service connection is
satisfied. 38 C.F.R. § 3.303; Gilpin, supra; Degmetich,
supra. In addition to a present disability, the probative
evidence must reflect a nexus between that disability and
service. 38 C.F.R. § 3.303. According to the July 2003 VA
medical examination report, there was sufficient continuity
of adverse left ankle symptomatology since service to reflect
a link to service. Thus, service connection for a left ankle
disability is granted. Id.; 38 U.S.C.A. § 5107; Gilbert,
supra. The Board observes furthermore that the examiner
indicated no other possible causative factors for the
veteran's left ankle disability.
The Board notes that all new evidence associated with the
claims file must be considered by the RO before Board review,
and the Board may no longer conduct independent evidentiary
development. See Disabled American Veterans, supra. As
such, under ordinary circumstances, the RO would have had to
have considered the July 2003 VA medical examination report
and any other new evidence obtained pursuant to Board
initiative prior to Board action. However, a remand to the
RO is not necessary in this instance because the decision on
this issue is favorable to the veteran and a remand to the RO
would cause unnecessary delay and serve no useful purpose.
See Sabonis, supra; Soyini, supra. See also Bernard v.
Brown, 4 Vet. App. 384 (1993), (holding that before the Board
addresses in a decision a question that has not been
addressed by the RO, it must consider whether the claimant
has been given adequate notice of the need to submit evidence
or argument, an opportunity to submit such evidence or
argument, and an opportunity to address the question at a
hearing, and whether the claimant has been prejudiced by any
denials of those opportunities).
ORDER
Service connection for a left ankle disability is granted.
REMAND
In April 2003, the Board initiated further evidentiary
development with respect to the issue of entitlement to
service connection for right carpal tunnel syndrome. New
evidence has since been associated with the claims file. The
Board, however, cannot consider this new evidence prior to an
RO review of same. See Disabled American Veterans, supra.
As such, this matter must be remanded to the RO for further
action.
To ensure that VA has met its duty to assist the veteran in
developing the facts pertinent to the claim, the case is
remanded for the following development:
1. The RO must review the claims file and
ensure that all notification and
development action required by 38 U.S.C.A.
§§ 5102, 5103, and 5103A (West 2002) are
fully complied with and satisfied. See
also 38 C.F.R. § 3.159 (2002).
2. Next, the RO must review all new
evidence associated with the claims file
and issue a supplemental statement of the
case with respect to both issues on
appeal.
3. Finally, the RO should review the
claims file to ensure that all of the
above requested development has been
completed. If they are not, the RO
should take corrective action. See
Stegall v. West, 11 Vet. App. 268 (1998).
The veteran has the right to submit additional evidence and
argument on the matter the Board has remanded to the RO.
Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment by the RO.
The law requires that all claims that are remanded by the
Board or by the United States Court of Appeals for Veterans
Claims (Court) for additional development or other
appropriate action must be handled in an expeditious manner.
See The Veterans' Benefits Improvements Act of 1994, Pub. L.
No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A.
§ 5101 (West 2002) (Historical and Statutory Notes). In
addition, VBA's Adjudication Procedure Manual, M21-1, Part
IV, directs the ROs to provide expeditious handling of all
cases that have been remanded by the Board and the Court.
See M21-1, Part IV, paras. 8.44-8.45 and 38.02-38.03.
______________________________________________
V. L. Jordan
Veterans Law Judge, Board of Veterans' Appeals
IMPORTANT NOTICE: We have attached a VA Form 4597 that tells
you what steps you can take if you disagree with our
decision. We are in the process of updating the form to
reflect changes in the law effective on December 27, 2001.
See the Veterans Education and Benefits Expansion Act of
2001, Pub. L. No. 107-103, 115 Stat. 976 (2001). In the
meanwhile, please note these important corrections to the
advice in the form:
? These changes apply to the section entitled "Appeal to
the United States Court of Appeals for Veterans
Claims." (1) A "Notice of Disagreement filed on or
after November 18, 1988" is no longer required to
appeal to the Court. (2) You are no longer required to
file a copy of your Notice of Appeal with VA's General
Counsel.
In the section entitled "Representation before VA," filing
a "Notice of Disagreement with respect to the claim on or
after November 18, 1988" is no longer a condition for an
attorney-at-law or a VA accredited agent to charge you a fee
for representing you.